U.S. Department of Homeland Security Proposes Changes to H-1B Cap Registration

On September 24, 2025, the U.S. Department of Homeland Security (DHS) issued a notice of proposed rulemaking (“NPRM”) to amend its H-1B regulations. The proposal also includes provisions that would change the H-1B cap registration and selection process.

If implemented, the NPRM would revise the H-1B Cap selection process to add extra weight to applicants who are paid higher salaries relative to their respective fields. As a result, those individuals would be more likely to be selected.

BACKGROUND

When filing an H-1B petition, employers must first obtain a certified Labor Condition Application (“LCA”) from the Department of Labor (“DOL”). A required step in this application process is for employers to confirm that they are paying at or above the prevailing wage for the position in the area of intended employment. Employers select, from a DOL statistical database, the appropriate occupational classification for the offered position. The salaries for these positions are divided into 4 levels, from “entry level,” at Level I, to “fully competent workers,” at Level IV. The prevailing wage amount increases commensurate with the level.

While this this determination (as well as the LCA certification) is a requirement for the filing of an H-1B petition, it has not been required, nor has it been a consideration for selection, for H-1B cap registration.

The Details

In advancing the rule, DHS proposes to “implement a weighted selection process that would generally favor the allocation of H–1B visas to higher skilled and higher paid aliens, while maintaining the opportunity for employers to secure H–1B workers at all wage levels.” To do so, the rule will require that employers entering beneficiaries into the H-1B cap lottery will need to submit, not only biographical details on the beneficiaries (which has been the case in previous lotteries), but also details on the offered position, including the salary, the geographical area of intended employment, the occupational classification, and the wage level.

After registration has closed, USCIS will weight the entries by manipulating the number of times a given beneficiary is added to the pool. According to the NPRM, the registrations will be weighted in the following manner:

• Positions with Level I wages will be entered into the lottery 1 time;
• Positions with Level II wages will be entered into the lottery 2 times;
• Positions with Level III wages will be entered into the lottery 3 times; and,
• Positions with Level IV wages will be entered into the lottery 4 times.

The intended result of this change is that beneficiaries who are offered higher salaries relative to the area of employment, would see a far higher chance of being selected in the lottery. Those beneficiaries who are offered salaries that meet the lower levels will still have a chance at being selected, but would find themselves at a statistical disadvantage.

What’s Next?

The public may submit comments to the rule through October 24, 2025. Once DHS reviews and considers all comments, it intends to publish a final rule. While there is no anticipated publication date for the rule at this time, the rule would be issued no sooner than 60 days from the issuance of the NPRM, or November 24, 2025.

Gibney will closely monitor advancement of this rule and will provide updates as they become available. For questions about the rule and the notice and comment period, please contact your designated Gibney representative.